The recent decision of the Scottish Lands Tribunal in EE Limited/Hutchison 3G Limited (Applicants) v Duncan and Others (Respondents) LTS/ECC/2019/12 to 16 and 2020/01, 02, 03 & 13 issued on 23 September 2020 is the latest in a tapestry of litigation which has arisen since the coming into force of The Electronics Communications Code on 28 December 2017. Still commonly called the ‘new Code’ nearly three years after coming into force, there have been a number of uncertainties and unintended consequences on which the courts have been asked to arbitrate to the detriment of landowners and operators alike. Given that the new Code was aimed at providing certainty for parties to underpin an improvement and expansion to the country’s communication network, it has been an inauspicious start.

This was a highly anticipated decision on the relevancy of nine conjoined applications concerning modification of Code agreements under Paragraph 33, Part 5 of the ECC. Each application sought the termination of existing agreements under the former Code based on leases which had expired and were running on tacit relocation, in order to replace the agreements with ones under the new Code.



在英国,该学说是苏格兰独有的。英格兰的类似情况受1954年房东和租户法的规定受到管辖,该规定相关租约具有该法规的保护,或者是由没有保护的租赁地位的。土地法庭的先前裁决AshlochandAP Wireless分别清楚地说明了法规与该法规的互动以及随意的租赁。在里面AP Wireless案件,经营者的职业在其合同协议届满后随意租约,该协议被排除在1954年法案之外。这禁止操作员根据第20段或第33段行使代码权利。

意志的租约不是苏格兰租赁法中认可的概念,幸运的是,对于运营商来说,已经避免了有关默认搬迁的平行情况。决定EE Limited/Hutchison 3G现在已经确认,由于默示搬迁而继续租赁的租约是一项订立协议,并且不构成新的租约,因为书面合同保持不变。过渡守则权利将适用于继续默示搬迁的协议,与第33段相比,将有一项在英格兰的情况下寻求修改的证据,该协议将在租约下继续占据租赁。

However, this decision is tempered by a further element which sets a high bar for operators to justify modification under Paragraph 33 and which may protect landowners’ interests under existing agreements. The lower rental values of the new Code had led many operators to look for ways to renew their existing agreements to benefit from these terms. However, the Tribunal clarified that modification procedure can only be used where there is a specific需要为了它。一般政策的考虑或商业实用性将无法清除这一障碍,因为协议必须过于限制或繁重以应有的需求。如果不允许根据第33款进行修改,则现在可能要求运营商以不太好的条款续签现有协议,以等待与第33段有关的土地法庭的进一步决定。


The full opinion of the Tribunal is available at